Virginia v. Hicks
Decided Apr. 30, 2003, 539 U.S. 113

The Richmond Redevelopment and Housing Authority policy, authorizing the police to serve notice or arrest any person lacking "a legitimate business or social purpose" on the low-income housing development was not overbroad and did not violate the First Amendment because it targeted all trespassers equally.


A. Issues Discussed:
Trespassing, First Amendment

B. Legal Question Presented:

Is the Richmond Redevelopment and Housing Authority's (RRHA) trespass policy, which provides for arrest after being served notice for being on the premises without "a legitimate business or social purpose," invalid because too broad under the First Amendment?


A. Background:

"The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owns and operates Whitcomb Court, a low-income housing development. In 1997, the Richmond City Council conveyed Whitcomb Court's streets to the RRHA, in an effort to combat crime and drug dealing by nonresidents. In accordance with the terms of conveyance, the RRHA enacted a policy authorizing the Richmond police to serve notice on any person lacking 'a legitimate business or social purpose' for being on the premises and to arrest for trespassing any person who remains or returns after having been so notified.

The RRHA gave respondent Hicks, a nonresident, written notice barring him from Whitcomb Court. Subsequently, he trespassed there and was arrested and convicted. At trial, he claimed that RRHA's policy was, among other things, unconstitutionally overbroad. The Virginia Court of Appeals vacated his conviction. In affirming, the Virginia Supreme Court found the policy unconstitutionally overbroad in violation of the First Amendment, because an unwritten rule that leafleting and demonstrating require advance permission vested too much discretion in Whitcomb Court's manager."

On certiorari, the U.S. Supreme Court reversed the judgment of the Supreme Court of Virginia.

B. Counsel of Record:
Opposing Side
Steven D. Benjamin argued the cause for respondent. With him on the brief were Amanda Frost, Brian Wolfman, and Alan B. Morrison. William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the briefs were Jerry W. Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Christy A. McCormick and A. Cameron O'Brion, Assistant Attorneys General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M. Carpenter; for the Richmond Tenants Organization et al. by Catherine M. Bishop; for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler and Robert M. O'Neil; and for Watch-tower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and Philip Brumley.

Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General Chertoff and McCallum, James A. Feldman, Michael Jay Singer, and Stephanie R. Marcus.

Briefs of amici curiae urging reversal were filed for the City of Richmond et al. by William G. Broaddus, Jonathan T. Blank, William H. Baxter II, Godfrey T. Pinn, Jr., and John A. Rupp; for the Council of Large Public Housing Authorities et al. by Robert A. Graham, William F. Maher, and Carl A. S. Coan III; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National League of Cities et al. by Richard Ruda and James I. Crowley.


"Under [the First Amendment's overbreadth doctrine], a showing that a law punishes a 'substantial' amount of protected free speech, 'in relation to the statute's plainly legitimate sweep,' suffices to invalidate all enforcement of that law 'until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.' Only substantial overbreadth supports such facial invalidation, since there are significant social costs in blocking a law's application to constitutionally unprotected conduct...

Hicks has not shown that the RRHA policy prohibits a substantial amount of protected speech in relation to its many legitimate applications. Both the notice-barment rule and the 'legitimate business or social purpose' rule apply to all persons entering Whitcomb Court's streets, not just to those seeking to engage in expression. Neither the basis for the barment sanction (a prior trespass) nor its purpose (preventing future trespasses) implicates the First Amendment.

An overbreadth challenge rarely succeeds against a law or regulation that is not specifically addressed to speech or conduct necessarily associated with speech. Any applications of the RRHA's policy that violate the First Amendment can be remedied through as-applied litigation."

The United States Supreme Court reversed the Supreme Court of Virginia judgment.

Justice Vote: 0 Pro vs. 9 Con
  • Scalia, A. Con (Wrote majority opinion)
  • Souter, D. Con (Wrote concurring opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Ginsburg, R. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • Breyer, S. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Thomas, C. Con (Joined majority opinion)
  • Stevens, J. Con (Joined majority opinion)

    The ACLU, as amicus curiae, urged affirmance of the judgment of the Supreme Court of Virginia; the Supreme Court reversed in a 0-9 vote, giving the ACLU an apparent loss.